NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.8943 OF 2011 (Arising out of S.L.P. (C) No.25372 of 2005)

Ibrahim .......Appellant Versus

Raju and others        .......Respondents  

J U D G M E N T

G.S. Singhvi, J.

1. Delay condoned.

2. Leave granted.

3. Feeling  dissatisfied  with  the  enhancement  granted  by  the  High  

Court in the amount of compensation awarded by 2nd Additional Motor  

Accident  Claims  Tribunal,  Karwar  (for  short,  `the  Tribunal’),  the  

appellant has filed this appeal.

4. The appellant sustained serious injuries on the head, nose, back and  

lower region of abdomen including the pelvic region when the tempo in  

which he was travelling met with an accident on 23.4.2000.  He was taken  

to Vijayashree Orthopaedic Centre for first aid and was then shifted to

Kasturba  Hospital,  Manipal.   He  remained  in  the  hospital  from  

23.04.2000 to 05.06.2000.  

5. The  appellant  filed  a  petition  under  Section  166  of  the  Motor  

Vehicles Act, 1988 (for short, `the Act’) and claimed compensation of  

Rs.3,00,000/- with interest and cost.  He pleaded that the accident was  

caused due to rash and negligent driving of the tempo by its driver Shri  

Raju;  that  he  had  suffered  serious  injuries  in  the  accident;  that  he  

remained in the hospital for almost one month and a half and had to spend  

more  than  Rs.80,000/-  towards  medical  treatment,  conveyance  and  

expenses of the attendants; that at the time of accident he was a student of  

Class 8 and on account of the injuries he was not in a position to continue  

his studies.

6. The  owner  and  the  driver  of  the  offending  vehicle,  who  were  

impleaded as non-petitioners No.1 and 2 did not contest the claim of the  

appellant.   However,  the  National  Insurance  Company,  which  was  

impleaded as non-petitioner No.3 contested the claim by asserting that the  

accident was not caused due to rash and negligent driving of the tempo  

and that the appellant was himself responsible for the accident.  

7. Two of the four issues framed by the Tribunal were whether the  

accident was caused due to rash and negligent driving of the tempo and  

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whether the appellant was entitled to compensation.  After analysing the  

evidence produced by the parties, the Tribunal held that the accident was  

caused due to rash and negligent driving of the tempo.  The Tribunal then  

referred  to  the  statements  of  Dr.  Anil  K.  Bhat,  Assistant  Professor  of  

Orthopaedics,  who  issued  disability  certificate  Exhibit  P-140  and  Dr.  

Joseph Thomas,  Professor of Urology, who issued treatment certificate  

Exhibit  P-141  (both  the  doctors  were  working  in  Kasturba  Medical  

College  and  Hospital,  Manipal)  and  awarded  compensation  to  the  

appellant under the following heads:

1. Pain and suffering Rs.25,000/- 2. Medical expenses Rs.20,340/- 3 Transportation                   Rs.  

1,900/-                       4. Diet and attendant charges Rs.30,600/-

5. Loss of  future earning on  account of disability

Rs.21,600/-

6. Decline in the prospects of  marriage

                Rs.50,000/ -

___________ Total Rs.1,49,440/-

8. The High Court partly allowed the appeal filed by the appellant  

under Section 173 of the Act and enhanced the amount of compensation  

by a sum of Rs.40,000/-.

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9. The appellant has questioned the impugned judgment mainly on the  

ground that while determining the amount of compensation, the Tribunal  

and the learned Single Judge of the High Court overlooked the parameters  

and principles laid down by this Court and did not take into consideration  

the expenses likely to be incurred by him for future treatment and the loss  

of amenities and enjoyment of life.

10. We have heard learned counsel for the parties and carefully perused  

the record.  The sufferings of the dependents of those who are killed in  

motor accidents and the survivors who are disabled are manifold.  Some  

time these can be measured in terms of money but most of the times it is  

not  possible to do so.   If an individual is  disabled as a result  of road  

accident, the cost of treatment, care and rehabilitation is likely to be very  

high.  A very large number of people involved in motor accidents are  

pedestrians,  children  and  women  and,  on  account  of  sheer  ignorance,  

poverty  and  other  disabilities,  majority  of  them are  unable  to  engage  

competent  lawyers for putting their cause before the Tribunals and the  

Courts.  The insurance companies, with whom the vehicles involved in  

accidents are insured always have the advantage of assistance of legally  

trained mind (law officers and panel lawyers).  They contest the claim  

petitions by raising all possible technical objections for ensuring that their  

clients are either completely absolved or their liability is minimized and  

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in the process, adjudication of the claims filed by the victims and/or their  

legal representatives is delayed for years together.  At times, the delay in  

disposal  of the claim cases and litigation expenses make the award of  

compensation meaningless for survivors of the accidents and/or families  

of  the  victims.   This  Court  has  time  and  again  emphasized  that  the  

officers, who preside over the Tribunals adopt a proactive approach and  

ensure that the claims filed under the Act are disposed of with required  

urgency  and  compensation  is  awarded  to  the  victims  of  the  accident  

and/or their legal representatives in adequate measure keeping in view the  

relevant factors.  Unfortunately, despite repeated pronouncements of this  

Court in which guiding principles have been laid down for determination  

of the compensation payable to the victims of road accidents and/or their  

families,  the  Tribunals  and  even  the  High  Courts  do  not  pay  serious  

attention  to  the  imperative  of  awarding  just  compensation  to  the  

claimants.

11. In Ward v. James (1965) 1 All ER 563, the Court of Appeal, while  

dealing  with  a  case  under  Section  6  of  the  Administration  of  Justice  

(Miscellaneous Provisions) Act, 1933 made some important observations,  

which are extracted below:

“Although you cannot give a man so gravely injured much for his ‘lost  years’,  you  can,  however,  compensate  him  for  his  loss  during  his  shortened span, that is, during his expected ‘years of survival’. You can  

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compensate him for his loss of earnings during that time, and for the cost  of treatment, nursing and attendance. But how can you compensate him  for being rendered a helpless invalid? He may, owing to brain injury, be  rendered unconscious for the rest of his days, or, owing to a back injury,  be unable to rise from his bed. He has lost  everything that makes life  worthwhile. Money is no good to him. Yet judges and juries have to do  the best they can and give him what they think is fair. No wonder they  find  it  well  nigh  insoluble.  They  are  being  asked  to  calculate  the  incalculable. The figure is bound to be for the most part a conventional  sum. The judges have worked out a pattern, and they keep it in line with  the changes in the value of money.”

12. In  R.D.  Hattangadi  v.  Pest  Control  (India)  Pvt.  Ltd.  and  others  

(1995) 1 SCC 551, this Court while dealing with a case involving claim  

of  compensation  under  the  Motor  Vehicles  Act,  1939,  referred  to  the  

judgment in Ward v. James (supra), Halsbury’s Laws of England, 4 th edn.,  

vol. 12 (page 446) and observed:

“Broadly speaking while fixing an amount of compensation payable to a  victim of  an  accident,  the  damages  have  to  be  assessed  separately  as  pecuniary damages and special  damages.  Pecuniary damages  are those  which the victim has actually incurred and which are capable of being  calculated in terms of money; whereas non-pecuniary damages are those  which are  incapable  of  being assessed  by arithmetical  calculations.  In  order  to  appreciate  two  concepts  pecuniary  damages  may  include  expenses  incurred  by the  claimant:  (i)  medical  attendance;  (ii)  loss  of  earning of profit up to the date of trial; (iii) other material loss. So far  non-pecuniary damages are concerned, they may include (i) damages for  mental and physical shock, pain and suffering, already suffered or likely  to  be  suffered  in  future;  (ii)  damages  to  compensate  for  the  loss  of  amenities of life which may include a variety of matters i.e. on account of  injury the claimant may not be able to walk, run or sit; (iii) damages for  the  loss  of  expectation  of  life,  i.e.,  on  account  of  injury  the  normal  longevity  of  the  person  concerned  is  shortened;  (iv)  inconvenience,  hardship,  discomfort,  disappointment,  frustration  and  mental  stress  in  life.”

In the same case, the Court further observed:

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“In its very nature whenever a tribunal or a court is required to fix the  amount  of  compensation  in  cases  of  accident,  it  involves  some  guesswork, some hypothetical consideration, some amount of sympathy  linked  with  the  nature  of  the  disability  caused.  But  all  the  aforesaid  elements have to be viewed with objective standards.”

13. In Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka  

(2009) 6 SCC 1,  the three-Judge Bench was dealing with a case arising  

out  of  the  complaint  filed  under  the  Consumer  Protection  Act,  1986.  

While enhancing the compensation awarded by the National Consumer  

Disputes  Redressal  Commission  from  Rs.15  lakhs  to  Rs.1  crore,  the  

Bench  made  the  following  observations  which  can  appropriately  be  

applied for deciding the petitions filed under Section 166 of the Act:

“We must emphasise that the court has to strike a balance between the  inflated and unreasonable demands of a victim and the equally untenable  claim of the opposite party saying that nothing is payable. Sympathy for  the victim does not, and should not, come in the way of making a correct  assessment,  but  if  a  case is  made out,  the court  must  not  be chary of  awarding adequate compensation. The “adequate compensation” that we  speak of,  must  to some extent,  be a  rule of  thumb measure,  and as a  balance has to be struck, it  would be difficult  to satisfy all the parties  concerned.

At the same time we often find that a person injured in an accident leaves  his family in greater distress vis-à-vis a family in a case of death. In the  latter  case,  the initial  shock gives  way to a  feeling  of  resignation and  acceptance, and in time, compels the family to move on. The case of an  injured and disabled person is, however, more pitiable and the feeling of  hurt,  helplessness,  despair  and often destitution enures every day.  The  support  that  is  needed by a  severely  handicapped person comes  at  an  enormous price, physical, financial and emotional, not only on the victim  but even more so on his family and attendants and the stress saps their  energy and destroys their equanimity.”

(emphasis supplied)

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14. In  Reshma  Kumari  and  others  vs.  Madan  Mohan  and  another  

(2009) 13 SCC 422, this Court reiterated that the compensation awarded  

under the Act should be just and also identified the factors which should  

be kept in mind while determining the amount  of compensation.   The  

relevant portions of the judgment are extracted below:

“The  compensation  which  is  required  to  be  determined  must  be  just.  While the claimants are required to be compensated for the loss of their  dependency, the same should not be considered to be a windfall. Unjust  enrichment should be discouraged. This Court cannot also lose sight of  the fact that in given cases, as for example death of the only son to a  mother, she can never be compensated in monetary terms.

The  question  as  to  the  methodology  required  to  be  applied  for  determination  of  compensation  as  regards  prospective  loss  of  future  earnings,  however,  as  far  as  possible  should  be  based  on  certain  principles. A person may have a bright future prospect; he might have  become  eligible  to  promotion  immediately;  there  might  have  been  chances of an immediate pay revision, whereas in another (sic situation)  the nature of employment was such that he might not have continued in  service;  his  chance  of  promotion,  having  regard  to  the  nature  of  employment may be distant or remote. It is, therefore, difficult for any  court to lay down rigid tests which should be applied in all situations.  There are divergent views. In some cases it has been suggested that some  sort of hypotheses or guess work may be inevitable. That may be so.

In  the  Indian  context  several  other  factors  should  be  taken  into  consideration including education of the dependants and the nature of job.  In the wake of changed societal  conditions and global scenario,  future  prospects may have to be taken into consideration not only having regard  to  the  status  of  the  employee,  his  educational  qualification;  his  past  performance but also other relevant factors, namely, the higher salaries  and perks which are being offered by the private companies these days. In  fact while determining the multiplicand this Court in   Oriental Insurance    Co. Ltd.   v.    Jashuben   held that even dearness allowance and perks with    regard  thereto  from  which  the  family  would  have  derived  monthly  benefit, must be taken into consideration.

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One of the incidental issues which has also to be taken into consideration  is inflation. Is the practice of taking inflation into consideration wholly  incorrect? Unfortunately, unlike other developed countries in India there  has been no scientific study. It is expected that with the rising inflation  the rate of interest would go up. In India it does not happen. It, therefore,  may  be  a  relevant  factor  which  may  be  taken  into  consideration  for  determining the actual  ground reality.  No hard-and-fast  rule,  however,  can be laid down therefor.”

(emphasis supplied)

15. In  Arvind  Kumar  Mishra  v.  New  India  Assurance  Company  

Limited and another (2010) 10 SCC 254, the Court considered the plea  

for  enhancement  of  compensation  made  by  the  appellant,  who  was  a  

student of final year of engineering and had suffered 70% disablement in  

a motor accident.  After noticing the factual matrix of the case, the Court  

observed:

“We do not intend to review in detail state of authorities in relation to  assessment of all damages for personal injury. Suffice it to say that the  basis of assessment of all damages for personal injury is compensation.  The whole idea is to put  the claimant  in the same position as he was  insofar as money can. Perfect compensation is hardly possible but one has  to keep in mind that the victim has done no wrong; he has suffered at the  hands of the wrongdoer and the court must take care to give him full and  fair compensation for that he had suffered.”

(emphasis supplied)

16. In Raj Kumar vs. Ajay Kumar and another (2011) 1 SCC 343, the  

Court considered some of the precedents and held:  

“The provision of the Motor Vehicles Act,  1988 (“the Act”, for short)  makes  it  clear  that  the  award  must  be  just,  which  means  that  compensation should, to the extent possible, fully and adequately restore  the claimant to the position prior to the accident. The object of awarding  

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damages is to make good the loss suffered as a result of wrong done as far  as money can do so, in a fair, reasonable and equitable manner. The court  or the Tribunal shall have to assess the damages objectively and exclude  from consideration any speculation or fancy, though some conjecture with  reference to the nature of disability and its consequences, is inevitable. A  person is not only to be compensated for the physical injury, but also for  the loss which he suffered as a result of such injury. This means that he is  to be compensated for his inability to lead a full life, his inability to enjoy  those normal amenities which he would have enjoyed but for the injuries,  and his inability to earn as much as he used to earn or could have earned.  

The heads under which compensation is awarded in personal injury cases  are the following: Pecuniary damages (Special damages)  (i)  Expenses  relating  to  treatment,  hospitalisation,  medicines,  transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made  had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages)  (iv)  Damages  for  pain,  suffering  and  trauma  as  a  consequence  of  the  injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In  routine  personal  injury  cases,  compensation  will  be  awarded  only  under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where  there  is  specific  medical  evidence  corroborating  the  evidence  of  the  claimant, that compensation will be granted under any of the heads (ii)(b),  (iii),  (v)  and  (vi)  relating  to  loss  of  future  earnings  on  account  of  permanent disability, future medical expenses, loss of amenities (and/or  loss of prospects of marriage) and loss of expectation of life.”

(emphasis supplied)

17. In  the  light  of  the  above,  we  shall  now  consider  whether  the  

compensation  awarded  to  the  appellant  is  just  and  reasonable  or  the  

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Tribunal  and  the  High  Court  committed  an  error  by  not  awarding  

compensation  for  the  future  treatment,  deprivation  of  opportunity  to  

undertake further studies and consequential loss of earning/income which  

he  would  have  derived  by  taking  up  appropriate  job  or  doing  some  

business as also diminution of the marriage prospects.

18. A  perusal  of  the  record  shows  that  the  appellant  had  produced  

substantive evidence to prove that as a result of accident he had suffered 8  

grievous injuries including fracture of pelvis and he had to remain in the  

hospital for one month and a half; that he was treated by Dr. Anil K. Bhat,  

Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of  

Urology  and  that  on  account  of  grievous  injuries  he  was  unable  to  

continue his studies.  In his deposition, Dr. Joseph Thomas categorically  

stated that  the appellant  will  have to undertake life  long treatment  for  

recurrence  of  urethral  strictures  and  consequential  dysfunction  due  to  

fracture of pelvis.  Unfortunately, neither the Tribunal nor the High Court  

adverted to this part of the evidence and omitted to award compensation  

for  the  expenses  likely  to  be  incurred  by  the  appellant  for  future  

treatment.  One can reasonably expect that the appellant who was only 18  

years old at the time of accident would live for at least next 50 years.  The  

Tribunal awarded Rs.20,340/- for expenses incurred by the appellant for  

treatment taken by him in the hospital.  Although, Dr. Thomas did not  

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indicate  the  approximate  expenditure  likely  to  be  incurred  by  the  

appellant and his family for future treatment, keeping in view the nature  

of  injuries  and  the  fact  that  he  will  have  to  take  treatment  for  the  

remaining life, it will be reasonable to infer that he will be required to  

spend a minimum of Rs.1,000/-  per month for future treatment,  which  

would necessarily include fees of the doctors, medicines, transportation,  

etc.   In  the  absence  of  concrete  evidence  about  the  anticipated  

expenditure, we think that ends of justice will be met if the appellant is  

awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would  

earn an interest of Rs.14,000/- to 16,000/- per annum.

19. On account of the injuries suffered by him,  the prospects of the  

appellant’s  marriage  have  considerably  reduced.   Rather,  they  are  

extremely bleak.  In any case, on account of the fracture of pelvis, he will  

not  be  able  to  enjoy  the  matrimonial  life.    Therefore,  the  award  of  

Rs.50,000/- under this head must be treated as wholly inadequate.  In the  

facts and circumstances of the case, we feel that a sum of Rs.2 lacs should  

be awarded to the appellant for loss of marriage prospects and enjoyment  

of life.

20. The compensation awarded for loss of future earning on account of  

permanent partial disablement is ex facie unreasonable.  Respondent No.3  

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did not produce any evidence to controvert the appellant’s assertion that  

on account of the injuries suffered in the accident, he had to abandon his  

studies.   The  consequences  which  followed  were  extremely  grave  

inasmuch as he lost all opportunities for making a career in future.  The  

prospects of the appellant’s marriage are extremely bleak.  Therefore, a  

sum of Rs.2 lacs deserves to be awarded under these heads.

21. We are conscious of the fact that in the petition filed by him, the  

appellant had claimed compensation of Rs.3 lacs only with interest and  

cost.  It will be reasonable to presume that due to financial incapacity the  

appellant  and  his  family  could  not  avail  the  services  of  a  competent  

lawyer and make a claim for adequate compensation.  However, as the  

Tribunal and the High Court and for that reason this Court are duty bound  

to  award  just  compensation,  we  deem  it  proper  to  enhance  the  

compensation from Rs.1,89,440/- to Rs.6 lacs.   This approach is in tune  

with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274.  In  

that case, the Court considered a similar issue, referred to the judgments  

of the Bombay High Court in Municipal Corporation of Greater Bombay  

v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in  

Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and  

Punjab and Haryana High Court  in  Devki  Nandan Bangur  v.  State  of  

Haryana 1995 ACJ 1288 (P&H) and observed:

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“For the reasons discussed above, in our view, under the MV Act, there is  no restriction that the Tribunal/court cannot award compensation amount  exceeding the claimed amount. The function of the Tribunal/court is to  award “just” compensation which is reasonable on the basis of evidence  produced on record. Further, in such cases there is no question of claim  becoming time-barred or it  cannot be contended that by enhancing the  claim there would be change of cause of action. It is also to be stated that  as  provided  under  sub-section  (4)  to  Section  166,  even  the  report  submitted to the Claims Tribunal under sub-section (6) of Section 158 can  be  treated  as  an  application  for  compensation  under  the  MV  Act.  If  required, in appropriate cases,  the court may permit  amendment to the  claim petition.”

22. In the result,  the appeal  is allowed.  The impugned judgment  is  

modified  and it  is  declared that  the appellant  shall  be entitled to total  

compensation of Rs.6 lacs with interest at the rate of 6% per annum from  

the date of filing the claim petition.  If respondent No.3 has already paid  

the compensation in terms of the award of the Tribunal and the impugned  

judgment, then it shall pay the balance amount with interest at the rate of  

6% per annum on the enhanced amount of compensation within a period  

of 3 months.  If the amount awarded by the Tribunal and the High Court  

has not been paid so far, then respondent No.3 shall pay the total amount  

of Rs.6 lacs to the appellant with interest at the rate of 6% per annum  

within the said period of 3 months.

    ………………………………J. (G.S. Singhvi)

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    ………………………………J. (Asok Kumar Ganguly)

New Delhi, October 31, 2011.

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